Delhi District Court
Sh. Vijender Kumar vs Sh. Jagdev on 8 February, 2008
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IN THE COURT OF SH. SATISH KUMAR ARORA, CIVIL JUDGE, DELHI
SUIT NO : 1269/06
Sh. Vijender Kumar
..........Plaintiff
Versus
Sh. Jagdev
..........Defendant
ORDER
1. By this order, I shall dispose of the application under Order 39 Rule 1 & 2 R/w Section 151 CPC as filed by the plaintiff. Through the application, prayer is made for (a) passing of an ad-interim injunction order against the defendant thereby restraining the defendant, his agents, servants etc. or any other person acting under the defendant to dispossess the plaintiff from the suit shop, till the final disposal of the suit; and (b) passing of an ad-interim order directing the defendant to re-laid/replace the old roof of the suit shop and if the defendant fails to replace/re-laid the roof, defendant may be Page 1 of 12 -:2:- restrained from interfering in relaiding/repairing old roof by the plaintiff and expenses incurred may be allowed to be deducted from further rent. Facts necessary for the adjudication of the present application may be summarized as under.
2. Plaintiff has filed the suit for permanent and mandatory injunction. It is alleged by the plaintiff that he is a tenant in a shop in property bearing no. 55A, Railway Road, Narela for past about 20 years, having inherited the tenancy from his late father and is presently doing the business of haircutting saloon and hair dressing under the name & style of Vijay Hair Dresser. It is further alleged that the defendant had purchased the property including the shop from its erstwhile owner/landlord, LRs (three daughters) of Late Sh. Ishwar Singh. It is stated that plaintiff has been regularly making the payment of rent to the defendant after the purchase of the property by the defendant from its erstwhile owner/landlord. It is alleged that the defendant at the time of declaring himself the landlord in the year 2002, had assured the plaintiff that he would not evict the plaintiff without due process of law and would carry out the necessary maintenance work so as to keep the tenanted premises Page 2 of 12 -:3:- in good and habitable condition. It is stated that the shop is constructed with very thick walls of about 18 inches thickness and are strong enough, however the roof is made of stone slates put on wooden beams. It is further stated that with the passage of time, the wooden beams have become weak and could not bear the burden of the stone slates, therefore require replacement. It is alleged that plaintiff repeatedly requested the defendant to replace and re-laid the roof, however the defendant had refused to do the needful. It is further alleged that the plaintiff had even requested the defendant to allow the plaintiff to re- laid/replace the existing wooden beams, however the defendant has not acceded to the request of the plaintiff.
3. It is alleged that since the rental values of the properties in the locality have gone up, the intention of the defendant has turned mala fide so as to dispossess the plaintiff from the tenanted premises. It is alleged that the defendant is a very influential, powerful and well connected person and the wife of the defendant is a very senior officer with the Municipal Corporation of Delhi. It is further alleged that owing to his influential position, defendant had threatened the plaintiff that by the use of his influence and official power Page 3 of 12 -:4:- of his wife, he would get the suit shop demolished in case plaintiff fails to vacate the suit shop. Plaintiff under the apprehension that he would be forcibly dispossessed by the defendant is before this court by way of the present suit and the consequent application under Order 39 Rule 1 & 2 R/w Section 151 CPC for the grant of injunction order as well as permission to the plaintiff to repair the roof of the suit shop, more specifically shown in red in the site-plan filed with the plaint.
4. Defendant by filing the reply has vehemently contested the present application of the plaintiff. It is stated that the present application of the plaintiff is not maintainable because under the garb of the application, plaintiff wants to rebuild the entire suit shop, as the same is under a dilapidated condition and can fall down any moment. It is further stated that proceedings under Section 348 & 349 of the Delhi Municipal Corporation Act are already pending for consideration before the MCD and the present suit has been filed just to side track the main issue. The allegations of the plaintiff that the defendant is adamant to evict the plaintiff by the use of his influence as well as official position of his wife, is denied as false and baseless. It is further Page 4 of 12 -:5:- denied that the suit shop is in a very good condition except the roof. It is stated that the whole of the property including the suit shop is in a dilapidated condition and can not be repaired. The plaintiff's allegation that the defendant is not allowing the plaintiff to repair or re-lay the roof of the shop, is denied. In view of the aforesaid, prayer is made for dismissing the present application with cost.
5. I have heard the rival contentions of the ld. counsel for the parties and perused the record. It is pertinent to note here that when the matter was listed for orders on the present application of the plaintiff for 15.01.08, an application under Section 151 CPC was filed by the defendant for taking on record certain additional facts. In the said application, it is stated that the plaintiff herein has filed another suit for injunction against the defendant and Municipal Corporation of Delhi for the stay of demolition orders already passed by the MCD. It is further stated that the said suit is still pending adjudication before the Court of Sh. Vivek Kumar Gulia, Ld. Civil Judge, Delhi. Along with the application, a true copy of the report of the local commissioner, appointed in the suit filed by the plaintiff against the MCD and Page 5 of 12 -:6:- the defendant, was also filed. It is stated that in the report submitted by the local commissioner, it has been observed by the ld. local commissioner that the entire property bearing no. 55A, Railway Road, Narela which includes the suit shop in the present suit also, is in a very dilapidated state and there are number of cracks in the walls and the roof of the property. The ld. local commissioner had also observed that it would not be inappropriate to turn the property as a "Khander" and further, the plaintiffs (including the plaintiff in the present suit) are taking a great risk of their lives by working in the shops. The application along with the report of the local commissioner was brought to the notice of the ld. counsel for the plaintiff, who after its perusal submitted that he has no objection if the said application is allowed and the additional facts are taken note of in the present suit.
6. Ld. counsel for the defendant contends that when the prayer for mandatory injunction in the plaintiff's suit for permanent and mandatory injunction is not maintainable in the light of provisions as contained in Section 44 of the Delhi Rent Control Act, 1958, there is no question of allowing the present application of the plaintiff. Ld. counsel for the defendant further Page 6 of 12 -:7:- contends that the defendant herein has never extended any threats of forcibly dispossessing the plaintiff from the suit property, and the counsel is having the instructions from the defendant to make a statement in that respect for and on behalf of the defendant. As to the prayer of the plaintiff for giving the directions to the defendant to re-lay/repair the roof of the suit shop or in the alternative, give the permission to the plaintiff to carry out the necessary repairs in the suit shop, ld. counsel for the defendant places reliance upon the judgment of the Hon'ble High Court of Delhi in Yogender Pal Bhatia Vs. Rajesh @ Sonu & Ors., 116 (2005) DLT 202. In the given case, the question of civil remedy of mandatory injunction available to a tenant covered under the provisions of the Delhi Rent Control Act, 1958 (hereinafter referred to as Act), was answered in the light of the provisions of Section 44 and Section 50 of the Act. After taking note of the provisions of Section 44 and Section 50 of the Act, it was observed that "there are two scenarios; on the one hand, there is neglect or negligence on the part of the landlord to look after the tenanted premises, and on the other, there is a deliberate act of causing damage to the tenanted premises or being so totally neglectful in looking after the Page 7 of 12 -:8:- tenanted premises as to virtually become a deliberate act of damaging them. In the former scenario, the remedy available to the tenant is to approach the rent controller under the provisions of the Delhi Rent Control Act, 1958 after following the procedure as laid down under Section 44 of the Act. In the latter scenario, where there is a deliberate act of the landlord of causing damage to the tenanted premises or being so totally neglectful in looking after the tenanted premises, the remedy available to the tenant is the civil remedy and the provisions of the Act can not come in his way, otherwise any other interpretation would mean that an unscrupulous landlord could deliberately damage the tenanted premises, refuse to carry out repairs and thereby compel his tenant to vacate the tenanted premises, since the tenant would be without an effective or meaningful remedy. Surely, this is not the only way to understand the law".
7. Ld. counsel for the defendant submits that in view of the aforesaid judgment and the elaborate procedure as provided under Section 44 of the Act and further, since in the present suit the defendant has not in any way deliberately caused damage to the suit property, therefore the present Page 8 of 12 -:9:- application of the plaintiff is not maintainable and merits dismissal.
8. Ld. counsel for the plaintiff also places reliance on the judgment as cited by the ld. counsel for the defendant. He contends that even in the said authority, the Hon'ble Court has clearly distinguished the remedies available to a tenant covered under the Act; in case there is a neglect or negligence on the part of the landlord to look after the tenanted premises, the remedy available to the tenant is to approach the Rent Controller under the provisions of the Act, but where there is a deliberate act of the landlord of causing damage to the tenanted premises which includes within its fold the omission on the part of the landlord so as to virtually become a deliberate act of damaging the tenanted premises, the remedy available to the tenant in such a situation is to approach the civil court and the provisions of the rent act can not come in his way. Ld. counsel for the plaintiff contends that in the present case, there is an utter neglect on the part of the defendant to keep the tenanted premises in good shape and this utter neglect, whether deliberate or not, amounts to a deliberate act of damaging the tenanted premises thereby compelling the plaintiff/tenant to vacate the suit premises. He further Page 9 of 12
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contends that even in the document filed by the defendant, which is the report of the local commissioner as filed in an another suit, it is prima-facie established that the defendant is deliberately avoiding to keep the tenanted premises in good shape as the local commissioner in his report has observed that the property including the suit shop in the present suit is in a dilapidated condition and could fall any moment. Ld. counsel for the plaintiff therefore contends that the present case is a fit case where the tenant covered under the Rent Act is left with no other option but to approach the civil court for the remedy of permanent and mandatory injunction.
9. From the aforesaid, the question which is to be determined by this court is as to whether in the present case, there is an utter neglect on the part of the defendant to keep the suit shop/tenanted premises in good shape so as to amount to a deliberate act of damaging the tenanted premises. The fact that the property including the suit shop is in a dilapidated state is denied by none of the parties. As to what positive steps have been taken by the defendant to repair the property including the suit shop are not forthcoming either in the averments made in the written statement or in the submissions of the ld. Page 10 of 12
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counsel for the defendant. Merely because, at present, the property including the suit shop is in a dilapidated state, the defendant can not shy away from his duty of maintaining the tenanted premises in good shape. Even from the report of the local commissioner, which has been filed in another suit filed by the plaintiff herein, it is evident that the property including the suit shop is in such a bad shape that the ld. local commissioner in his report had observed that "it would not be inappropriate to term the property as a 'Khander' ". This observation of the ld. local commissioner on which even the ld. counsel for the defendant places reliance upon, points to the fact that the defendant is so neglectful in looking after the tenanted premises as to virtually become a deliberate act of damaging it. Hence, even if the plaintiff/tenant in the present suit is covered under the provisions of the Delhi Rent Control Act, 1958, the civil remedy of filing the present suit is available in the light of special facts and circumstances of the present case whereby it has been prima-facie established that the defendant is totally neglectful in looking after the tenanted premises. I am of the opinion that if the interim relief of giving the permission to the plaintiff to repair the roof of the suit shop is not given, irreparable injury will be the result.
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10. In view of the aforesaid, the plaintiff's application under Order 39 Rule 1 & 2 CPC is allowed and the defendant, his agents, representatives etc. are hereby restrained from forcibly dispossessing the plaintiff from the suit shop, more specifically shown in red colour in the site-plan filed with the plaint, till the final disposal of the suit. Plaintiff is further given the permission to carry out the necessary repairs including the replacement of the wooden beams on the roof in the suit shop at his own expense and the defendant is directed not to create any obstruction in the carrying out of the necessary repairs by the plaintiff.
Nothing said herein above shall tantamount to expression of opinion on the merits of the case.
Matter be listed for admission/denial and framing of issues, for 06.05.2008.
Announced in open court:
Dated : 8th February, 2008 (SATISH KUMAR ARORA)
(Three copies attached) CIVIL JUDGE, DELHI
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